Commonwealth v. Beasley

argued the Appellant’s counsel issue addressed

Anders brief. trial court for an advocate’s A remand issue. serve analysis aid our

brief would not Anders, particu- under purpose useful issue was a

larly the crux of the since Thus, elected

question law. proceed on the merits.

remand Summarizing, Appel- find we do not “wholly

lant’s frivolous” as first claim be Therefore, an Anders context.

defined deny petition counsel’s withdraw Nevertheless, Anders.

pursuant

claim fails on its merits. The other claims “wholly

are frivolous.” petition for leave to with- Counsel’s sentence af- Judgment

draw denied.

firmed. Pennsylvania,

COMMONWEALTH

Appellant, BEASLEY, Appellee.

Oliver James Pennsylvania.

Superior Court of 12, 2000.

Argued April

Filed Oct. shabbily carrying a little bit

dressed purchase tags a black This individ- backpack. still on the were at the bar [Beasley] ual sat down beside backpack down between and set the minutes After about five two of them. conversation, male the second stood my check meter and said have to up or towed get tagged make don’t sure the restaurant proceeded and leave floor. leaving backpack the on the while Streily, Atty., Michael W. Asst. Dist. not see where police officer could Com., Pittsburgh, appellant. for the leaving male went after the second Rabner, Pittsburgh, appel- for Fred G. about five [Beasley] waited restaurant. lee. bill, paid picked up his and then minutes toward the bag walking and started the JOHNSON, HUDOCK, Before: and point, the officer also At that door. BROSKY, JJ. toward the door and able walked The offi- JOHNSON, [Beasley] it before did. reach J.: badge and asked displayed his cer ¶ 1 appeals The Commonwealth the him. with [Beasley] if would talk [he] trial court’s six kilos of suppressing order sure and the officer asked said [Beasley] police backpack cocaine from a recovered step back into the restaurant him to possession the Oliver defendant walking [Beasley] talk. started area to Beasley. James The Commonwealth bag. The and the officer dropped back charged Beasley two violations of with the [Beasley] bag motioned to the told Substance, Drug, Controlled Device and bring point, it with him. At Act, Cosmetic and now certifies that the pushed the officer aside [Beasley] granting suppression effectively order has leaving bag. the ran from the restaurant prosecution. terminated the See Com- minutes, opened officer After five the Pa. Dugger, monwealth v. what was later bag the discovered (Pa.1985). See also Pa. determined to be cocaine. 904(e). 311(d), R.A.P. We conclude that correctly suppressed the trial court 11/9/99, Opinion, Trial at 2-3. Sub- evidence, as police conducted a seizure Beasley turned himself over sequently, Beasley’s person without reasonable of counsel and the Com- police advice suspicion Beasley’s in crim- involvement this action. monwealth commenced activity. Accordingly, inal we affirm. motion, Beasley sought omnibus pre-trial ¶ 2 The this case are surrounding facts of the contents of the back- suppression opinion set forth the trial court discovery of pack, contending McDaniel, Donna Jo as follows: Honorable illegal an contraband was the result of reasoning agreed, The trial court seizure. Off-duty offi- Allegheny County police Marx, directing that Officer cer, Marx, July that on A.J. testified after initial en- Pittsburgh he was a downtown counter, an had conducted restaurant with his wife and child when concluded Id. at 3. The court well-dressed, male, detention. he black observed failed evidence Commonwealth’s [Beasley], seated whom he identified as necessary suspicion to establish approximately restaurant bar ten minutes, and so ordered such a detention away. about ten for feet After Id. suppressed. another walked into the restaurant evidence male ¶ 3 appeal, On the Common cending justify levels their wealth raises the issue of [w]hether as interactions citizens those interac- trial granting suppression? court erred in tions become more intrusive. Our Su- Brief Appellant at 4. scope Our of preme Court has defined three forms of when review considering the Common police-citizen interaction: mere encoun- appeal suppression wealth’s of a order is ter, detention, investigative and a custo- narrow: dial detention. See Commonwealth Bos- must well,

[W]e consider the evidence 554 Pa. the ... [defendant’s] witnesses and so A mere encounter between and a much of the evidence for prosecution supported by citizen need not be level as in the read context of the record as a suspicion, no official carries] com- whole remains uncontradicted. If the pulsion to part stop on the the citizen or of supports evidence findings the factual of respond. Riley, to Commonwealth v. 715 we, court, the trial are bound such 1131, (Pa.Super.1998), appeal A.2d 1134 may and findings, we if reverse the (1999). denied, 617, 558 Pa. 737 A.2d 741 legal conclusions drawn therefrom are in No prohibits police constitutional provision error. in pub- officers from a citizen approaching Boswell, lic Bowersox, Commonwealth to make of them. inquiries v. 450 Pa.Su- 176, 718, (1996) (cita- However, 721 per. [i]f A.2d A.2d at 339-40. the 719-20 intrusive, police tions action too mere and internal marks becomes quotation omit- ted). Thus, investigato- encounter into an determine the escalate propriety of ry case, the To deter- [detention] court’s order in or seizure. Id. this we must mine discern whether whether a encounter has risen findings the court’s mere are detention, to the supported by investigatory the level of an evidence adduced at the and, whether, suppression so, matter of hearing if must discern as a whether the law, police of court concluded have a seizure the correctly that Officer conducted person v. Marx effected involved. Commonwealth investigatory See detention Mendenhall, 484, 1117, without reasonable 552 Pa. 715 A.2d See id. ¶ 4 Pennsylvania The Supreme been in vigilant has the protection of To decide whether a seizure has oc- right the to privacy guaranteed by Article curred, apply the following I, Section 8 of our state Constitution. On the cir- test: a court must consider all repeated occasions, the Court has admon surrounding cumstances the encounter

ished that: conduct determine whether seriousness of criminal un- reason- would have communicated to a der investigation, whether is the sale person person able not free was or drugs the commission a violent requests to decline the officers’ other- crime, can justification never be used as apply- wise terminate the encounter. ignoring or abandoning the constitu- test, ing necessary this it is examine right every tional individual this the nature of Circum- the encounter. Commonwealth be free from intru- include, are stances consider but sions her personal his or liberty to, following: limited number of probable absent cause. interaction; during present officers — Polo, -, Commonwealth v. Pa. whether the the citizen officer informs -, (2000) 372, they activity; (quoting suspected are Matos, 449, voice; v. Commonwealth 543 Pa. and officer’s demeanor tone (1996)). 775-76 To timing secure the the location and of the interac- right tion; weapons of citizens to be free intru- from such the visible presence sions, Pennsylvania require officer; courts in law questions and the asked. enforcement officers demonstrate as- Otherwise inoffensive contact between restaurant, him Marx told public the floor of member law, him. at 10. cannot, Id. as a matter amount to directive, dis- issued after Marx’s person. seizure of that Such a clearly a command play badge, of his was (internal citations, Boswell, 721 A.2d at 340 authority. color official issued under omitted). quotation marks and brackets — Moreover, in the Marx’s evident interest Polo, at -, Pa. also 759 A.2d See re- backpack clearly suggests J., (Saylor, concurring dissenting). Beasley’s rela- garding its contents Thus, must point inquiry the focal of our to those contents. Because tionship whether, considering be the circumstances command both exercised official Marx’s incident, surrounding the a reasonable Beasley’s partic- authority implied crime, [person] innocent of would activity, it caused the ipation illegal thought he being he was restrained had to an to escalate encounter been the defendant’s shoes. See Com time, Beasley Matos, point detention. At that v. Pa. 672 A.2d monwealth (1996) v. seized. See Commonwealth legally (quoting Commonwealth Jones, Martin, (Pa.Super.1997) 705 A.2d 474 Pa. (1977)). (concluding that mere encounter with to an investi- plain-clothes officer escalated case, agree 5 In this all parties when officers uniform gatory detention Marx and incident between Officer they him approached defendant and told began as mere encounter. tip selling was had received a that he concluded, however, trial court that Lewis, v. Pa. drugs); 535 Commonwealth an investigatory encounter escalated into (1994) 619, 501, (concluding A.2d 623 636 when, detention, seizure, and hence a after plain-clothes where that seizure occurred Marx, Beasley to with agreeing speak station, at bus told officers met defendant dropped backpack him and Marx told doing and they working him were narcotics bag they to him while with checking for couri- program an interdiction 11/9/99, Trial 3. Opinion, talked. at York, drugs from New bringing ers back argues The Commonwealth that no seizure trip). questioned and him about his occurred because the circumstances sur- rounding approach Beasley Marx’s were ¶ 7 Our courts have mandated Specifically, non-coercive. the Common- officers, prior to sub that law enforcement points wealth out Marx was neither detention, investigatory jecting a citizen uniform, that Marx armed nor in and suspi must harbor at least a reasonable in a spoke normal tone voice without engaged then person that the seized is cion issuing commands. activity. in unlawful See Commonwealth 778, Allen, 200, 681 A.2d Pa.Super. 6 asser v. 452 The Commonwealth’s — (1996). Polo, at -, also Pa. 783 notwithstanding, tions we conclude that See (reaffirming at rule of law totality of the circumstances suffi 759 A.2d 375 was ciently [person] ‘investigative detention’ must be coercive that a reasonable that an crime, by suspicion). thought supported [T]he reasonable innocent of would have restrained, Matos, suspicion reasonable being question 672 A.2d of whether he was 773, hence, free at the time of an and would not have felt existed at by examining must be answered Initially, to terminate the encounter. Offi detention deter totality the circumstances to displayed badge cer Marx his and identi particularized was a Sup N.T. mine whether there police fied himself as a officer. indi 8/30/99, suspecting the objective at Marx then basis for Hearing, pression activity. criminal re adjacent stopped to vidual immediately himself positioned 556, D.M., 160, 557 Pa. 727 A.2d Beasley and Beasley, physically between (1999). Thus, grounds for rea at to establish restaurant. Id. 28-29. the exit im- whose suspicion, the officer Beasley dropped sonable When pressions (1996); Arch, formed the basis for the stop 654 A.2d at which, must specific held, articulate facts 1144. Consequently, con we have junction occasions, multiple reasonable inferences de that even where the facts, rived surrounding from those led him circumstances an reasonably individual’s conclude, suggest conduct light ongoing illegality, his in- experience, that activity afoot. dividual not be Common detained unless his or See her Cook, personal wealth v. Pa. conduct substantiates 735 A.2d involve- (1999). ment in activity. Tither, See Although 671 A.2d officer’s observations, (concluding own defendant’s con- knowledge experi duct failed establish reasonable weigh heavily suspi- ence thus in determining cion where existed, witnessed defendant in suspicion whether reasonable our car, parked person saw second reach in- remain courts mindful that the officer’s car, side parties and saw both depart when judgment is necessarily by [his colored or yelled third person warning exposing primary her] involvement in ‘the often police presence; police saw no exchange of competitive enterprise of ferreting out money drugs or had no prior informa- D.E.M., crime.’ In re 727 A.2d n. activity); Wilson, tion of criminal 19 (Pa.Super.1999) Terry Ohio, (quoting at 560 (concluding that defendant’s conduct 1, 11-12, 392 U.S. 88 S.Ct. failed to establish (1968)). Therefore, L.Ed.2d the test where defendant twice exited his vehicle in apply remains an one and will neighborhood of high drug not be satisfied hunch officer’s disappeared sight prior to returning unparticularized Common vehicle; although police observe did Arch, wealth v. Pa.Super. drug activity involving neigh- others 1141, 1144 borhood, they did see not defendant en- gage exchange objects in money); or ¶ 8 Although may officer .con Martinez, Commonwealth v. Pa.Super. 403 sider patterns the modes or operation (1991) 125, 513, (concluding 588 A.2d 516 lawbreakers, certain kinds of Common that defendant’s conduct failed to establish (Pa.Su Fink, 447, wealth v. 700 A.2d 449 where, suspicion upon approach per.1997), held, our repeatedly, courts of police, departed company defendant profiles that such do not substitute for appeared several others with she whom independent observation of an individual’s away be talking displaying hurried a behavior, Lewis, 510-12, see 535 Pa. at 636 in bulge jacket; the front her did (1994); 624 at Commonwealth v. group observe interaction amongst Jackson, 1231, 428 Pa.Super. 630 A.2d conversation). other apparent than (1993) that in (holding the absence of a firmly drug successful established couri ¶ 9 We conclude that the circum er profile, showing [a] mere of innocent by stances observed Officer Marx fail to is behavior insufficient to establish reason substantiate either a reasonable suspicion). able Accordingly, an officer’s partic of criminal activity Beasley’s afoot, belief that criminal is albeit Tither, ipation activity. in such inAs Wil circumstances, plausible under the must be son, Martinez, in the conduct which finked his suspicious observation of or Beasley engaged, in fight even considered irregular particular behavior of the defen totality of the the circumstances dant he stopped before conduct the officer, the perspective of a trained Wilson, stop. Commonwealth v. suggest Beasley’s does not in involvement (1995); Pa.Super. 655 A.2d Indeed, activity. Beasley’s criminal con Wright, Pa.Super. Commonwealth v. duct innocuous and sub appears largely (1996); by Common no Marx stantiates conclusion Officer Tither, Arch, wealth v. Pa.Super. beyond A.2d at a hunch. See two indi- characteristics of grooming testimony 1144. Marx’s own reveals way legality he impact of the circumstances on which viduals in some paucity pre- only in stop: relied to conduct the can be rooted their conduct prop- propriety, notions of social conceived in Q. Why you approach [Beasley] did to law enforcement. erly irrelevant place, Detective? first Well, things my drew couple A. a of Beas- Similarly, departure [Beasley] attention. One was that his meter and ley’s companion parking dressed, well groomed, was well apprised which he the manner suspect, he was dressed second probative have little value of his intentions shabbily and carrying Beasley’s participation determining it, carry- tags which still had the activity. Officer Marx stated ing you in his can it left hand and loudly on de- Beasley’s companion spoke way strap pulled tell Beas- backpack, and left his which parting bag. on the retrieved before ley some minutes later things The he fact those —then attempting departure. his own rec- He’s sits back down between them. that Marx attributed the suggests ord says, there five minutes and have to of the man’s voice to a desire to tone check the meter. know the meters However, intentions. disguise real you in the area are out front and find value in Marx’s observa- probative no able in less go should be and out tion, that Marx had as the record shows minute, than one and he didn’t come man once speak previously, heard the [Beasley] picked back in. back- [the drink from the when he had ordered a pack] up and started to walk out Hearing, Suppression bartender. N.T. door, regular drop it looked like 8/30/99, had no Clearly, at 22-23. Marx me. basis which discern adequate 8/30/99, Hearing, 11- Suppression N.T. normal tone voice. In addi- speaker’s tion, reflects that the although the record Initially, find little value in Offi- spoke he man was seated at bar when opinion cer Marx’s the transaction bartender, provides no measure regular drop. looked like a Id. Such Beasley, whom he was of his distance from objective upon conclusion provides no basis his intention to addressing, when he stated which the trial court or this Court can loudly Ostensibly, spoke the man leave. the nature gauge Beasley’s pre- conduct by his as he merely to be heard listener D.M., ceding stop. the See In re we find no ob- away. Accordingly, walked at 557 a ob- (requiring particularized and in which jective indication the record jective for the suspecting basis individual voice, if in why man raised his to infer the activity). Accordingly, of criminal stopped did, no leaving us with substantia- fact he compelled disregard are to Officer concerning the Marx’s inference tion for opinion. Upon review Marx’s statement of in Beasley’s participation man’s motive or coupled of Marx’s observations up the picked when he activity criminal Cook, inferences, with reasonable see backpack. man’s at we find scant basis on which to premise reasonable ¶ further on the loca- 13 Marx’s reliance ¶ the side- abutting meters Initially, Beasley’s parking tion the manner a basis to the restaurant as companion, upon which walk outside dress or that similarly pair’s the activities is ground suspect a conclusion Officer Marx relied Beasley’s that no flawed. Marx’s suspicion, id. at bears drop be- companion drug had conducted to the two men’s relationship whatever the brief return after cause he did not activity. point in involvement unlawful minutes, a supposition fact, span of five reflects suggestion disparate that the Mesa, the man could in wealth parked have Pa.Super. front of very by. the restaurant or near However, the record reflects that he ¶ 17 Order AFFIRMED. parked any in space along the street Id. at 22. Marx artic-

for blocks. several ulated no knowledge of where man the ¶ HUDOCK, J. files a Dissenting and, parked consequently, only spec- could Statement. ulate on the amount of time he would likely return, take to or his motive HUDOCK, J., dissenting. returning within five minutes. ¶ I agree my colleagues learned with Finally, concerning appearance the the between Marx incident Officer backpack, contents of the we find no Appellant began as a mere encounter reliable indication of criminal ei- the Appellant when officer followed the ther in apparent its weight pres- or in the him speak door and with after asked ence of tags. sales Marx Officer failed to badge. Appellant displaying his articulate, time, any at why presence the agreed step into the restaurant back of sales on tags bag suggested officer, speak area with was either its owner or were involved point at this the transaction —while in activity. Concerning pur- Appellant still mere encounter —that ported weight of pack, any number floor dropped backpack of this weighty objects may have pull- caused the restaurant, public thereby abandoning the ing of the pack’s strap that Officer Marx circum- backpack under non-coercive Moreover, observed. Marx could not state abandon the stances. intent to Appellant’s backpack, characteristic of the includ- property subsequent is clear rather ing its shape, that suggested its contents events, and ran when he shoved the officer were, fact, Id. at 24-25. contraband. door, him out the after officer directed Although recognize that our I possession backpack. retake of the courts must review totality cir- would not seizure this aban- find the cumstances view of offi- the detaining doned contraband to be unconstitutional. enforcement, cer’s expertise law see Fink, 700 A.2d at we must conclude ¶ Further, if there was no aban- even that the circumstances at issue substanti- point, totality donment this believe Arch, hunch, ate more nothing than a see of circumstances warrant the seizure. 654 A.2d at 1144. doWe not find suffi- agree my colleagues further with learned cient irregularity Beasley’s conduct or Appellant that when directed the officer the related occurrences observed Offi- him, bag this cer Marx to a particularized establish authority assertion of the mere changed to suspect basis in- Beasley’s encounter detention. to an volvement in time However, majority, find that unlike the D.M., and place re stop. of observed Officer circumstances conclude, A.2d at 557. We accordingly, Marx do rise to the level of a reasonable that the trial court did not err in conclud- activity justifying of criminal ing subjected to deten- investigative lay person, detention. To a tion without reasonable Appellant the interaction and the between reasons, foregoing For the con- courier who delivered clude that court properly simply appeared strange ordered to be behav- ior; evidence suppressed of contraband eye as to the this trained law enforce- Wong See product illegal officer, of an search. years ment had twenty-seven who States, Sun v. United 471, 486, years 371 U.S. police experience, twenty nar- (1963); Common- S.Ct. L.Ed.2d 441 it investigatory experience, appeared cotics Pastore, Don Anthony Pastore, Carl drop regular exactly was: to be what Pastore, drugs. Pas and Paul Pastore d/b/a Brothers, Tenants in Common tore Accordingly, dissent. Pennsyl Brothers, a Pastore d/b/a Partnership vania v. Pennsylvania, State Commonwealth Education, Higher for the System of University of Penn Edinboro use of sylvania v. PORRECO Louis J. v. Township Millcreek. DEVELOPERS, INC., John

MALENO Lynn E. Maleno. D. Maleno and Education, Higher for System of State Pastore, Pastore,

Anthony Don Carl University of Pastore, Edinboro the use of Pas and Paul Pastore d/b/a Brothers, Appellant. tore Tenants Common Pennsylvania, Brothers, Pennsyl Pastore d/b/a Partnership vania Pennsylvania. Commonwealth

v. Argued 2000. June and Maleno Louis J. Porreco Sept. 2000. Decided Developers, Inc. Nov. Denied Reargument v. Township of Millcreek. Pastore, Pastore,

Anthony Don Carl Pastore, Pas Paul

Pastore and d/b/a Brothers, in Common Tenants tore Brothers, Pennsyl Pastore d/b/a Partnership vania Pennsylvania, State

Commonwealth Education,

System Higher University Penn Edinboro

use of

sylvania

Township of Millcreek.

Case Details

Case Name: Commonwealth v. Beasley

Court Name: Superior Court of Pennsylvania

Date Published: Oct 23, 2000

Citation: 761 A.2d 621

Docket Number: 1480 WDA 1999

Court Abbreviation: Pa. Super. Ct.